Citation Nr: 1751235 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-16 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE 1. Entitlement to an extra-schedular disability rating for left eye visual impairment due central stromal scarring with dense neovascularization, status post corneal ulcer and keratopathy (previously diagnostic code 6066) associated with dry eye syndrome left eye. 2. Entitlement to an extra-schedular disability rating for dry eye syndrome left eye. ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1997 to November 1999 and from April 2007 to September 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada made in January 2013 and May 2014. This matter was previously before the Board, and, in September 2016, this matter was remanded for further development. Further development in substantial compliance with the Board's remand instructions has been completed. FINDING OF FACT The Veteran's eye disabilities do not cause marked interference with employment, frequent hospitalizations, or unique and unusual factors that would justify an extraschedular rating. CONCLUSION OF LAW The criteria for an extraschedular disability rating have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321(b) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and the Veteran has not either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and were provided sufficient evidence to fairly rate her disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board notes that this matter was previously remanded in order to refer the matter to either the Under Secretary for Benefits or the Director of the Compensation Service for extraschedular consideration. This development has been completed in substantial compliance with the Board's remand instructions. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, Because VA's duties to notify and assist have been met. Extraschedular Consideration At issue is whether the Veteran is entitled to an extraschedular disability rating. The weight of the probative evidence of record indicates that the Veteran is not. In September 2016 while evaluating the Veteran's claims for increased disability ratings for the Veteran's left eye disabilities, the Board found that the Veteran's description of her left eye disabilities gave rise to a claim for entitlement to an extraschedular disability rating, and the Board remanded the matter for referral to either the Under Secretary for Benefits or the Director, Compensation Service for extraschedular consideration in the first instance. The matter was referred to the Director, Compensation Service, and, in March 2017, an extraschedular disability rating was denied. Thereafter, the matter was returned to the Board. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. If an extraschedular disability rating is denied in the first instance, then the matter is returned to the Board for reevaluation based on the first two criteria. As previously noted, the Director, Compensation Service has denied an extraschedular disability rating in the first instance, and the Board may now adjudicate the Veteran's claim for an extraschedular disability rating. As the Board noted in the September 2016 Board decision, the Veteran's previously service-connected disabilities manifested in symptoms that were not adequately contemplated by the rating schedule. Nevertheless, the evidence of record does not demonstrate that the Veteran's disabilities caused factors that exceeded governing norms such as marked interference with employment and frequent periods of hospitalization for which the Veteran has not already been compensated for. The Board notes that the Veteran's service-connected disabilities did cause marked interference with employment from January 1, 2013 to December 24, 2013, but the Veteran has been assigned a total disability rating due to individual unemployability during that period of time. The Veteran's treatment records do not show that she was frequently hospitalized prior to January 2013 or since December 2013. A May 2012 VA examiner indicated that the Veteran's eye condition did not impact her ability to work. A December 2013 VA examiner determined that the Veteran's visual impairment prevented her from obtaining employment in which near normal vision is required in both eyes (commercial driving, law enforcement, etc.). In a March 2015 statement, the Veteran reported that she lost her job at VA due to her service-connected left eye disabilities and was discharged from the Army National Guard due to her service-connected left eye disabilities. She also reported having applied for SSA disability benefits due to her service-connected left eye disabilities. A September 2014 private opinion indicated that the Veteran's vision disability required aggressive treatment to maintain a baseline functioning in her life, and that she would likely require these treatments throughout her life. However, again, this opinion did not suggest that the eye disability caused marked interference with employment. In April 2015, another VA examiner opined that the Veteran's previously service-connected acquired psychiatric disorder caused the Veteran to manifest occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. During the course of the examination the Veteran did not report any significant periods of unemployment. A May 2015 SSA disability decision determined that the Veteran was disabled due to visual disturbances from January 1, 2013 to January 2014. The decision noted that the Veteran, at a hearing in April 2015, testified that she had returned to work in January 2014 and had continued to work since that time. On a VA Form 21-8940 completed by the Veteran in July 2015, she claimed that she had become too disabled to work in January 2013 due to her eye disabilities. She also reported that she had worked 30 hours per week from July 2012 to January 2013, and 40 hours per week since January 2014. In October 2015, another VA examiner opined that the Veteran could entertain both physical and sedentary employment with the current ocular conditions. The examiner noted that the Veteran's left eye condition caused limitations such as night driving, with climbing activities, and with walking in the dark with her noted loss of stereo vision, and that the Veteran's also had limitations when viewing material such as on a computer for too long a period with likely results in excessive blinking in helping to naturally re-lubricate the eyes regarding the current dry eye conditions. The examiner also noted that the Veteran also reported that she was currently employed with the current ocular conditions and with no issues at this time. In a July 2016 written statement, the Veteran indicated that she was currently working for VA. The Veteran also stated that due to her irritable bowel syndrome sometimes caused pain and discomfort severe enough to force her to take a day off from work. The Veteran also stated that her vision disabilities require to use special equipment in order to perform her job, and that her quality of life has been severely affected. She also reported being required to use a series of cumbersome devices to allow her to perform her job. However, the devices were all supplied by VA and appeared to be permitting the Veteran to do her job and mitigate the impairment caused by her service connected eye disabilities. The Board does not dispute these contentions, but the fact remains that the Veteran receives multiple compensable ratings that are intended to address the job impairment caused by her service connected disabilities. In February 2017, the Veteran was provided leave under the family medical leave act (FMLA), because her medical conditions force her to take unscheduled leave. The Veteran's supporting medical documentation for the FMLA leave indicates that since December 2013 the Veteran's medical conditions required the Veteran to seek medical treatment between one and four times per month every couple of months. Nevertheless, the supporting medical documentation indicates that the Veteran would not be unable to perform her job functions due to this condition except during flare-ups, and that she would not be incapacitated for a single continuous period of time. The Veteran submitted another written statement in April 2017, asserting that she was entitled to an extraschedular disability rating, because VA allegedly committed medical malpractice by failing to timely provide the Veteran with medication to treat her vision disability, which in turn led to a permanent worsening of her condition. Additionally, the Veteran stated that her vision disability prevented her from safely wielding a knife, and that as a result she now performs office work rather than her former profession as a chef. As previously noted, the evidence of record does not demonstrate that the Veteran's disabilities caused factors that exceeded governing norms such as marked interference with employment and frequent periods of hospitalization for which the Veteran has not already been compensated for. The Veteran was not hospitalized prior to January 2013 or after December 2013 due to her service-connected disabilities, and she has been able to maintain employment during this period of time as well. The regulations regarding extraschedular impairment address marked interference with "employment" but do not suggest that such limitation is marked interference with a given choice of employment. Here, the Veteran has been generally able to maintain fulltime employment during the course of her appeal, and as such, this line of argument does not support the assignment of an extraschedular rating. The Board acknowledges that the Veteran's disabilities have cause hardships that have impacted her ability to work such: switching professions; using assistive devices; and taking leave under the FMLA. Nevertheless, the Board does not consider these hardships constitute "marked" interference with employment. First, the rating criteria consider whether the Veteran is able to employment in any ostensibly gainful position rather than a specific profession. Second, the fact that the Veteran can still perform her job and maintain gainful employment when provided reasonable accommodations such as proper assistive devices and leave under the FMLA suggests that any interference with the Veteran's employment cannot be considered a marked one. The Board also notes the Veteran's allegations that VA committed medical malpractice. Without discussing the factual merits of these claims, this claim, as a matter of law, does not provide an adequate basis for relief, because extraschedular disability ratings are based on the manifestations of service-connected disabilities rather than their causes. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran's previously service-connected disabilities did not result in related factors such marked interference with employment and frequent periods of hospitalization. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to an extraschedular disability rating is denied. The Board acknowledges the Veteran's service to her country as well as the fact that her service-connected disabilities have negatively impacted the quality of her life. Unfortunately, the extraschedular rating criteria are based on factors such as marked interference with employment and frequent periods of hospitalization, and harms to overall quality of life are not an adequate legal basis for an extraschedular disability rating. ORDER An extraschedular disability rating is denied. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs